Zadow v The State of Western Australia
[2007] WASC 128
•24 MAY 2007
ZADOW -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 128
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 128 | |
| Case No: | SJA:1031/2007 | 24 MAY 2007 | |
| Coram: | McKECHNIE J | 24/05/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | ADRIAN JOHN ZADOW THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Road Traffic Act 1974 (WA) Driving under suspension Sentence of immediate imprisonment Failure to allow for early plea of guilty No new principles |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K AUTY
File No : ES 1218 of 2006, ES 266 of 2007, ES 269 of 2007, ES 307 of 2007
Catchwords:
Road Traffic Act 1974 (WA) - Driving under suspension - Sentence of immediate imprisonment - Failure to allow for early plea of guilty - No new principles
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C A Ide
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: On 14 March 2007, the appellant was sentenced to a total of 15 months and 2 days' imprisonment for a series of traffic offences. Although the Magistrate did not in her reasons specify an order for parole eligibility, the warrant of commitment signed by her clearly indicates that the appellant was made eligible for parole. The appellant appeals in person on two grounds as follows:
"The Magistrates Court imposed a sentence that was excessive having regard to the totality principle.
The Magistrates Court failed to give adequate weight to the appellant's early pleas of guilty."
2 In argument at the hearing, the appellant put forward a further proposition, which I think might be summarised as: The Magistrate erred in failing to suspend any term of imprisonment.
3 On 3 May 2007, Blaxell J ordered that "the application for leave to appeal, and the appeal, are to be listed and heard together on an urgent basis".
4 The offences to which the appellant pleaded guilty comprised three separate incidents.
21 November 2006 (ES 1218/2006)
5 On this day at about 10.03 pm, the appellant drove a motor vehicle in a southerly direction on Norseman Road, Esperance. Police travelling the other way did a u-turn and attempted to stop the vehicle in order to administer a random breath test. The appellant accelerated away despite the police following with lights and sirens; the appellant reaching a speed in excess of 109 kilometres per hour in a 60 kilometre per hour zone. After attempting to turn right into Arthur Road, the appellant's vehicle locked up and fishtailed on to the wrong side of the road, narrowly missed a power pole and traffic island, continued up the wrong side of the road before mounting a kerb and entering the carpark of a hardware store. The appellant continued through the carpark at speed, around the side of the building on to a gravel laneway before finally skidding to a stop behind some industrial buildings. There were three passengers in the vehicle. The chase followed a distance of approximately 2 kilometres. When spoken to the appellant stated that he thought the police wanted to drag race him. That incident gave rise to the charge of reckless driving (dangerous to public or any person) for which the appellant ultimately received a term of imprisonment of 6 months and 1 day. He also pleaded
(Page 4)
- guilty to driving without a motor driver's licence, failing to stop when called upon, and refusing a breath test. Each of those offences was dealt with by way of fine. They are not subject to appeal.
31 January 2007 (ES 266/07)
6 At about 10.43 pm on 31 January 2007, the appellant drove a vehicle in a southerly direction on Goldfields Road, Esperance, near Reynolds Street. Police who recognised the vehicle did a u-turn and accelerated after the appellant who accelerated at high speed, turning right into Phyllis Street and right again into Burton Road. Police activated emergency lights and sirens, signalling the vehicle to stop. The appellant drove away at high speed in a built-up residential area zoned 50 kilometres per hour. The police pursuing the appellant reached speeds in excess of 140 kilometres an hour. The appellant braked heavily, skidded and turned right into Reynolds Street where he abandoned his vehicle in a carpark but was apprehended by police before he could run away. In addition to a charge of reckless driving (inherently dangerous), the appellant was also charged with driving an unlicensed vehicle, failing to stop when called upon, driving while under suspension and driving with a blood alcohol content in excess of 0.08 per cent. For some of these offences he was fined. For the offence of reckless driving he was sentenced to 6 months and 1 day's imprisonment, cumulative on the sentence imposed in respect of the offence of 21 November 2006 (ES 1218/06). For driving while under suspension he received a term of 3 months' imprisonment cumulative on the other sentences.
10 February 2007 (ES 269/2007 and ES 307/2007)
7 At about 1.58 am on 10 February, the appellant was stopped in a motor vehicle and subjected to a random breath test. As a result, he was charged with driving while under suspension, his licence having been suspended on 13 December 2006, and driving with a blood alcohol content in excess of 0.08 per cent. For the charge of driving while under suspension he received a term of imprisonment of 3 months, which was ordered to be served concurrently, and he was fined for the other offence.
The first ground of appeal
8 The maximum penalty for a first or second offence of reckless driving is a fine or imprisonment for 9 months.
9 The maximum penalty for a first offence of driving while under suspension, in the circumstances of the appellant, is imprisonment for not
(Page 5)
- more than 12 months, and for a subsequent offence imprisonment for not more than 18 months.
10 The Magistrate had available a pre-sentence report.
11 The appellant had amassed a formidable record since 1989. The majority of his offending is in South Australian and consists of motor vehicle offences and also offences of petty crime. Despite only being in Western Australia for a relatively short period, prior to being sentenced on these matters, he had already committed four traffic offences and a breach of a bail undertaking.
12 It does not appear that the appellant had previously been sentenced to a term of imprisonment in the past. He is now aged 35 and from the pre-sentence report and his record, it is obvious that he has an intractable problem with alcohol and cannabis.
13 As the penalty for reckless driving was amended by the Sentencing Legislation Amendment and Repeal Act 2003 (WA), no adjustment to the sentence was required under the transitional provisions of that Act.
14 The reckless driving on 21 November 2006 was to be treated as a first offence of that nature in Western Australia. There were three passengers in the vehicle, all of whom were put at risk. There were other road users and the police were in pursuit. The reckless driving on 31 January 2007 also put other road users and police at risk.
15 It was aggravated by having occurred shortly after the first offence and while the appellant was still under suspension. Having regard to the whole of the circumstances of the three incidents, the appellant's antecedents, and the need for a sentence of both general and personal deterrence in relation to reckless driving, the Magistrate did not err in concluding that a sentence of immediate imprisonment was appropriate.
16 As the incidents of reckless driving were separate incidents and subject to totality, it was appropriate that they be dealt with separately by cumulative sentences.
17 The offence of driving while under suspension on 31 January was, having regard to the appellant's driving history, an act deserving of significant punishment. The offence of driving while under suspension on 10 February 2007 was aggravated by its proximity to the other offences. It may perhaps have been preferable to have made the offence of
(Page 6)
- 31 January concurrent and the sentence of 10 February 2007 cumulative, but this would make no practical difference to the outcome.
18 In short, I consider the individual sentences and their accumulation to be within the range of a sound sentencing discretion. It is always necessary to take a last look to ensure that the total sentence, though correct in its individual parts, has not become disproportionate to the total criminality disclosed. The total sentence of 15 months though high is not so far beyond an appropriate sentence as to manifest error. This ground of appeal fails.
19 The appellant, as I have said today, argues that consideration should have been given to a suspended sentence. He draws attention to a comment by the Magistrate when sentencing. In the course of her remarks the Magistrate said:
"Mr Zadow's presentation here today demonstrates that he's got a complete contempt to the proceedings. In respect of these matters there is no other message that can be sent to the community in Mr Zadow's sentencing here today other than that this conduct will result in a gaol term."
20 On the transcript that I have, it appears that Mr Zadow was represented by counsel at the hearing.
21 There was one interjection after the police prosecutor had stated the facts in relation to the first reckless driving charge. The appellant is recorded as intervening saying:
"Sorry judge I didn't see any lights at that time, so that's why I thought- - - "
HER HONOUR: Mr Zadow, you will be quiet or you will be in the cells by way of contempt.
MR ZADOW: All right."
22 Nothing else seemed to be said. I am unable to understand her Honour's comments or even her reference to having to go to the cells. If it were the case that that affected her decision on suspension of sentence, I would allow the appeal on that ground. However, reading her full remarks, I do not think it did, although I must say that the reference was unfortunate and should not have occurred.
(Page 7)
23 As I have said, her Honour went on to say:
"In respect of these matters there is no other message that can be sent to the community in Mr Zadow's sentencing here today than that this conduct will result in a gaol term."
24 There is a clear reference to general deterrence. She then dealt with the question of suspension in this way:
"In relation to a gaol term, it is the case that Mr Zadow is before the Court in matters where he can receive a gaol term for a first offence, and in respect to the reckless driving matters that is exactly what is going to occur. In relation to whether I suspend those terms of imprisonment, it is not the case that I will be doing so. I am of the view that in respect of Mr Zadow he has compounded his offending by the continued offending that he has been involved in, and as I have said, demonstrated a complete contempt for the road rules and the safety of the public."
25 That comment was made in relation to a submission about a suspended sentence. Clearly her Honour considered suspending the sentence and clearly rejected that as an option. Having regard to the nature of the offences, the comment she made was justified - that is, the complete contempt for the road rules and the safety of the public - I do not consider that her Honour fell into error in failing to suspend the sentence in all the circumstances.
26 I turn now to the second written ground of appeal.
The second ground of appeal
27 In the respondent's written submissions, it is accepted that he made an early plea of guilty and that the Magistrate made no reference to the early plea in her sentencing remarks. By that omission, it is not conclusive whether the Magistrate in fact gave a discount for the early plea but in the circumstances of the case, the proper inference is that no discount was given. Accordingly, the respondent accepts that the sentencing discretion miscarried.
28 It is difficult to see where recognition of the early plea of guilty is to be found in a sentence of 6 months 1 day when the maximum sentence is 9 months. Accordingly, I accept the concession made by the respondent and uphold this ground of appeal.
(Page 8)
29 In the circumstances, I will re-sentence the appellant to take account of the early pleas of guilty. The sentence for the first offence of reckless driving also contains an acknowledgment that it is the first time the appellant has been sentenced to lengthy imprisonment.
30 The orders I make are:
1. Leave to appeal is granted on both grounds.
2. The appeal having been heard and argued at the same time, the appeal is allowed.
3. The sentence of 6 months and 1 day's imprisonment on charge ES 1218/06 is set aside and in lieu thereof a sentence of 4 months' imprisonment.
4. The sentence imposed on the appellant on charge ES 266/07 of 6 months and 1 day's imprisonment cumulative is set aside and in lieu thereof the appellant is sentenced to a period of 5 months' imprisonment to be served cumulatively on the sentence imposed in respect of ES 1218/06.
5. The sentence of driving while under suspension in ES 269/07 remains at 3 months, to be served cumulatively on the other sentences.
6. The sentence of 3 months' imprisonment imposed on ES 307/07 is ordered to be served concurrently on the sentences imposed in respect of ES 1218/06 and ES 266/07.
7. The total effective sentence therefore is one of imprisonment for 12 months with effect from 14 March 2007. I make a parole eligibility order.
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